Assan Jeng v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Assan Jeng. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17243
Date Filed: 11/28/2017
Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17243
Non-Argument Calendar
________________________
Agency No. A098-050-743
ASSAN JENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 28, 2017)
Before ED CARNES, Chief Judge, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
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In January 2006 the United States Citizenship and Immigration Services sent
Assan Jeng a Notice to Appear, charging him with being removable under 8 U.S.C.
§ 1227(a)(1)(B) for remaining in the United States for a time longer than
permitted. In July 2007 Jeng failed to appear at his removal hearing, and an
Immigration Judge ordered his removal in absentia under 8 U.S.C. § 1229a(b)(5).
Six years later Jeng filed a motion to reopen his removal proceedings and rescind
the in absentia order of removal. The IJ denied his motion after finding that Jeng
failed to rebut the presumption that he received the Notice to Appear. The IJ also
exercised its discretion to deny the motion after concluding that Jeng failed to act
with due diligence in seeking to reopen his removal proceedings. The Board of
Immigration Appeals affirmed the IJ’s denial on both grounds. Jeng petitions for
review of the BIA’s order, contending that its decision to deny his motion to
reopen was arbitrary and capricious.
We review for an abuse of discretion the BIA’s denial of a motion to reopen.
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). The BIA’s
discretion to reopen “is so wide that even if the party moving has made out a prima
facie case for relief, the BIA can deny a motion to reopen a deportation order.”
Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999), abrogated on other grounds
by Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013). Given that
deferential standard, judicial review is limited to determining “whether the BIA
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exercised its discretion in an arbitrary or capricious manner.” Zhang v. U.S. Att’y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
In most cases an alien may file only one motion to reopen, and that motion
must be filed within 90 days of the date of entry of a final order of removal.
8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). But an alien may file a motion to
reopen in order to rescind an in absentia order of removal at any time if he shows
that he never received notice of the removal proceeding. 8 U.S.C.
§ 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii).
Even if we assume that Jeng never received the Notice to Appear, the BIA
did not abuse its discretion by denying his motion to reopen. 1 Jeng’s removal
hearing took place on July 3, 2007, and he was ordered removed in absentia that
same day. Jeng acknowledges that he learned of the in absentia removal order on
October 31, 2007, but he did not file a motion to reopen until February 2014.
Despite that delay, he argues that he “acted with diligence” because he filed his
motion to reopen once he was “eligible for relief” by virtue of “his marriage to his
U.S. Citizen spouse.” He does not explain why he delayed six years in seeking to
reopen his removal proceedings beyond asserting that it would have been
1
Because we assume without deciding that Jeng did not receive the Notice to Appear, we
do not address his argument that the BIA abused its discretion by concluding that he failed to
rebut the presumption that he did receive the notice.
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“illogical” for him to “have sought to reopen [the] case earlier, when he did not
have relief available to him.”
That Jeng “acted with diligence” once he was eligible for relief does not
excuse his lack of diligence in seeking to reopen his removal proceedings after he
learned of the removal order. As this Court has explained, “motions to reopen are
disfavored, especially in a removal proceeding, where, as a general matter, every
delay works to the advantage of the deportable alien who wishes merely to remain
in the United States.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006)
(quotation marks omitted). Jeng should not be rewarded for attempting to use the
six-year delay to his advantage, see id., and as a result the BIA did not abuse its
discretion by denying his motion to reopen after concluding that he failed to
exercise due diligence to redress the in absentia removal order. The BIA’s
decision not to reopen Jeng’s removal proceedings years after Jeng learned of the
in absentia removal order was not arbitrary or capricious. See Zhang, 572 F.3d at
1319; see also Anin, 188 F.3d at 1279 (“[T]he BIA [has] the discretion to reopen
immigration proceedings as it sees fit.”).
PETITION DENIED.
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